The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Saturday, 8 May 2010

The Court of Public Opinion: Governmental Possibilities

Harriet Harman MP, speaking in relation to the former Chief Executive of the Royal Bank of Scotland, referred to the "Court of Public Opinion". On 6th May, the people were finally permitted their say in the General Election and their "verdict" will be subjected to analysis for the days and months to come.

As widely forecast, the result was a "Hung Parliament" and the recently issued Cabinet Manual Guidance clicked into operation. This guidance is not based on rules set out in a formal constitution. It is based on a number of historical precedents such as Edward Heath in 1974. It permits the incumbent Prime Minister to remain in place even in a situation in which his Party does not have the largest number of seats in the House of Commons and even when his Party did not capture the largest share of the vote.

There are a number of possibilities. [1] the Conservatives and Liberal Democrats combine in some way. This could be either (a) a coalition arrangement or (b) a "Confidence and Supply" arrangement. The question of electoral reform is likely to be a major obstacle to this possibility. [2] the Labour Party and Liberal Democrats combine in some way in order to exclude the possibility of a Conservative government. This has been described as a "Coalition of Losers" but some commentators have seen it as a more likely outcome in policy terms than [1] though, due to personalities (Clegg v Brown), it may prove to be impracticable. A third possibility is that the Conservatives try to form a minority government but that would be unlikely to offer the political stability which the country requires in the present state of international finance etc. This could not come about without the resignation of the Prime Minister (e.g. if he is unable to achieve possibility 2 and form a government able to command the confidence of the House of Commons) whereupon Her Majesty could ask David Cameron to form a government. The fascination of all this is that possibilities 1, 2 and 3 may not be the only ones since there are some 29 MPs from other parties and they may be in a strong position to make demands as a price for supporting whatever government emerges.

The Cabinet Office is known to have made facilities available to assist with discussions but an important feature is that Her Majesty is not involved in any of the negotiations. . That is essential in a "constitutional monarchy" in which the Crown has a limited role in the formation of "Her Majesty's Government".

Queen's Speech: From the legal viewpoint, there will be many interesting days ahead as the policies and legislative programme of any new government emerge. The programme cannot be based solely on any single one of the Party Manifestos but will have to reflect the arrangements agreed between the parties. The eventual Queen's Speech at the State Opening of Parliament will therefore be of major importance.

There has been a suggestion that Labour might "ditch" Gordon Brown and form a (minority) government with Lib. Dem. support. Surely, such an outcome would surely be profoundly undemocratic. It is one thing to argue that, according to the Cabinet Guidance, an incumbent P.M. can remain whilst matters are sorted out. It is quite another to argue that the incumbent P.M. could resign but his Party continue under a new leader as the major player in a power-sharing minority government. After all, Labour have been decisively rejected (Scotland excepted) in the polls.

Addendum 3 (10th May): Gordon Brown stated that he would be resigning once a new Labour leader was elected. This would appear to make the option of a Labour/Lib Dem arrangement more likely.

Addendum 4 (11th May): Talks between the Liberal Democrats and the Labour Party took place but there was no agreement. Interestingly, a number of senior Labour Party figures had said that such a deal would lack legitimacy - see Politicshome. Consequently, Gordon Brown resigned as Prime Minister and then H.M. The Queen requested David Campbell to form a government. The twists and turns of the period 6th May to 11th May 2010 and the various personalities involved will interest political commentators for a long time to come. See, for example, "Big Beasts turn on Mandelson and Campbell" and "Labour infighting killed coalition hopes".

3 comments:

I declare an interest; I am against any form of P.R. for this country. It has been written that most European states are governed under one form or another of P.R. For that reason one might argue we should drive on the right; everybody else does. For the example of "good" coalition government Germany is quoted but not Italy which recently adapted a system akin to FPTP although that itself might be less than permanent. David Ben Gurion in 1947 wanted the emerging State of Israel to be the most democratic on Earth and it is that "democracy" which has produced the impass in the politics of that country where governments of national unity in all but name are virtually as common as party government and without real oppositions have produced the stasis impeding negotiations with Palestinians on a meaningful basis. Already we have the paradox of a Lib Dem party which has fewer seats now than last week but is almost dictating the shape and policy of a future Tory administration. I am for increased powers for the House of Commons and reduced powers of the Executive. The Labour Party did its best to reduce the former and increase the latter and for those reasons alone deserves to be in the wilderness for a long time. If libertarians within Lib Dems and Tories address these issues this result will have meaning for all.

I'm interested in why you describe a Lib/Lab pact with a new leader as 'profoundly undemocratic'? We vorte for individual MPs and to a degree, for a specifc party - I'm notconvinced that this option is inherently *less* democratic than any of the other alternatives. And in this particular election, I think it was fairly clear that Brown's head was on the block so any one who voted Labour would do so knowing that there was a strong possibility that Brown woud not be the party leader for much longer.

Persoanlly, I believe electoral reform is klong over due andthat some form of PR is the most democractic option: If a Lib/Lab pact will achieve that then I think that outcome would be win for democracy, taking the long view, albeit it will be via a VERY tortuous route!

(Hmm - word verification was "Nulab" - are the word verification bots taking an interest in the post?)

Given the coalition which ultimately emerged, I do not think that we will actually get proportional representation. We are more likely to get the Alternative Vote (AV) system. I have done a separate post about what the outcome might have looked like with different systems of voting. The outcomes are based on work done by the Electoral Reform Society.

I used the words "profoundly undemocratic" because, at the time, it looked likely that Labour would dump Brown so as to get a deal with the Lib Dems. At least, Brown had fought the election whereas some replacement leader would not have done so. The reality of elections is that the leader matters to the voters.

In the event, even senior Labour figures stood up to say that the attempt to put together a Labour/LD arrangement was not democratic. They plainly feared that if such a deal had been imposed they might have suffered badly. They are probably better off in Opposition where they can "regroup", reconnect with their grass roots", find a new leader. Above all, they remain as a distinct alternative for the voter to consider at the next general election which might still come fairly soon though personally I think we now need some political stability.